HomeMy WebLinkAbout10/17/2007 - STAFF REPORTS - 2.J. OF ?ALAI IPA
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" City Council Staff Report
01L I FOY, w
Date: OCTOBER 17, 2007 CONSENT CALENDAR
Subject_ APPROVAL OF AGREEMENT WITH CITY OF CATHEDRAL CITY FOR
BLOW SAND MITIGATION MEASURES
From: City Manager
Initiated By: Director of Public Works/City Engineer
SUMMARY
Approval of this item will approve an agreement with the City of Cathedral City for
construction and maintenance of the Ventura Road Living Wind Break along the Morongo
Creek Wash north of Vista Chino to provide blow sand mitigation.
RECOMMENDATION:
1) APPROVE AN AGREEMENT WITH THE CITY OF CATHEDRAL CITY FOR
CONSTRUCTION AND MAINTENANCE OF VENTURA ROAD LIVING WIND
BREAK TO PROVIDE BLOW SAND MITIGATION.
2) AUTHORIZE CITY MANAGER TO EXECUTE ALL NECESSARY DOCUMENTS.
STAFF ANALYSIS:
The boundary between the City of Palm Springs and the City of Cathedral City is westerly
of the east bank of the Morongo Creek Wash. Morongo Creek Wash us under the
jurisdiction of the Coachella Valley Water District (CVWD). The purpose of this project is
to reduce the amount of PM-10 blow sand that is deposited in the Rio Vista Neighborhood
of Cathedral City and along Ventura Road easterly of the Wash. The City of Cathedral City
and the City of Palm Springs,along with Caltrans,the Mobile Source Reduction Committee
(MSRC)and the Coachella Valley Water District have been working together to implement
a living wind break to help reduce the blow sand which is severely impacting Ventura Road
and Rio Vista Neighborhoods. The plans have been reviewed and are supported by the
Agua Caliente Band of Cahuilla Indians, the U.S. Fish and Wildlife Service and by the
Riverside County Agricultural Commission.
ITEM NO.
City Council Staff Report
October 17, 2007-Page 2
Blow Sand Mitigation Agreement
The concept of a living wind break was recommended in a Geotechnical and Blow Sand
Abatement Report dated January 27, 2004, prepared by Earth Systems Southwest for the
City of Cathedral City. Final plans were prepared by David Evans&Associates of Ontario,
California.
CVWD has agreed to allow for the planting of a living windbreak of Honey Mesquite Trees
on CVWD property along the west bank of the Morongo Creek Wash. The west bank of
the Morongo Creek Wash is located within Palm Springs.
The purpose of this agreement is to confirm that it is the responsibility of the City of
Cathedral City to perform maintenance including tree trimming and repair, install and
maintain the irrigation system for the living wind break, to remove sand when necessary
and that all maintenance will be performed at no expense to the City of Palm Springs.
Cathedral City agrees to provide Palm Springs a competed Minor Architectural Application,
as a condition of the Agreement. The Planning Department has reviewed and approved
the details of the planting plan_ The City of Cathedral City Council approved the
Agreement on September 25, 2007.
FISCAL IMPACT:
None.
ay-'_
David J. Barakian Thomas J. Wils
Director of Public Works/City Engineer Assistant City Manager-Development Services
David H_ Ready
City Manager
Attachments: Agreement
AGREEMENT
BY AND BETWEEN
CITY OF PALM SPRINGS
AND
CITY OF CA'1 HEDRAL PITY
FOR
BLOWSAND MITIGATION MEASURES
(Wind Fence Maintenance Agreement
Ventura Road/Morongo Creek)
THIS AGREEMENT ("Agreement") is entered into this day of
2006, ("Effective Date"), by and between the City of Palm Springs, a charter city located in the
State of Califomia ("CPS"), and the City of Cathedral City, a municipal corporation located in
the State of California ("CCC") for the construction and maintenance of blowsand mitigation
measures within the jurisdictional boundaries of CPS.
RECITALS
WHEREAS, CPS and CCC share a common jurisdictional boundary between the two
cities; and
WI3EREAS, certain proposed public infrastructure improvements required for the
reduction of blowsand and its resultant PM-10 are to be located on or near the common boundary
near Ventura Road, a portion of which is located on the westerly bank of the Morongo Creek
Wash; and
WHEREAS, a portion of the proposed reduction infrastructure improvements are to be
located within the CPS city limits on unimproved real property owned in fee by the Coachella
Valley Water District ("CV WD"), as legally described and shown in Exhibit "A" attached hereto
and incorporated herein by this reference (the "Property"); and
WHEREAS, subject to being issued an encroachment permit from CVWD, CCC is
desirous of reducing blowsand and its resultant PM-10 by constructing certain public
infrastructure improvements consisting of a living wind fence ("PM-10 Reduction
Crnprovements") along the Morongo Creek Wash on the Property within the CPS city limits to
aid in the protection of residential properties along Ventura Road; and
4greenzent for Blowsand Mitigation Measure .Page 1 Q'
WHERUAS, CPS is desirous of cooperating, with CCC in reducing blowsand and its
resultant PM-10 and the impact on residential properties along Ventura Road by allowing CCC
to construct and maintain the PM-10 Reduction Improvements provided there is no cost or
liability to CPS.
NOW, THEREFORE, in consideration of the mutual covenants, obligations and subject
to the conditions contained herein, the parties hereto agree as follows:
Section 1. Incorporation of Recitals.
All of the above Recitals are true and correct and incorporated herein by this reference to
the same extent as though set forth in full.
Section 2. Term and Termination.
This Agreement shall take effect upon approval and execution by the parties as of the
Effective Date and pursuant to the adopted Coachella Valley State Implementation Plan
(CVSIP), including Best Management Practices, and shall remain in effect until terminated by
mutual written agreement of the parties or either of the following:
a. one (1) year following the date on which CPS in its sole discretion may give
written notice to CCC that CPS has elected to cancel the delegation to CCC of the
maintenance activities associated with the PM-10 Reduction Improvements as
described in Section 3(b) below and to which CPS thereinafter shall undertake all
said maintenance activities at its sole cost and expense.
b. if CVWD fails to issue an encroachment permit to CCC or revokes an
encroachment permit validly issued to CCC that allows for CCC to enter the
Property and to construct, install and maintain the PM-10 Reduction
Improvements during the Term of this Agreement.
Upon termination, the parties shall be mutually discharged from any further obligation or
duty which arises under this Agreement, except that the provisions of Section 4 of this
Agreement shall remain in effect with respect to any claim of indemnity by CPS relating to an
event or injury which occurred solely during that period of time that CCC is legally responsible
and authorized to enter the Property and assume, pursuant to this Agreement, the installation,
maintenance and repair obligations for the PM-10 Reduction Improvements described herein.
Upon CPS undertaking all maintenance responsibilities for the PM-10 Reduction Improvements
pursuant to Section 2(a) above, CCC shall no longer be required to, and shall not, indemnify CPS
000a�i
Agreement far Blowsand Mitigation Measure Page 2
for any. event or injury that occurs on the Property or with regard to the maintenance
responsibilities upon CPS assuming the maintenancu obligations for the PM-IO Reduction
Improvements pursuant to Section 2(a) above.
Section 3. CCC OHLYations.
a. Provided that CCC is issued a valid encroachment permit from CV WD allowing
for CCC to enter the Property and to construct, install and maintain the PM-10
Reduction Improvements during the Term of this Agreement, CCC agrees that
within one hundred twenty (120) days of the Effective Date of this Agreement,
CCC shall commence and thereafter diligently complete the construction and
installation of the PM-10 Reduction Improvements along the west side of the
Morongo Creek Wash, at its sole cost and expense and in accordance with this
Agreement. The CPS City Engineer may inspect the work of improvements at
any reasonable time. The PM-10 Reduction Improvements and other related
improvements including the 13lowsand Abatement Landscape Improvement Plans
(Plans LI-1, LI-2, and LI-3) are more particularly described in Exhibit `B",
attached hereto and incorporated herein by this referenced, and shall generally
consist of clearing and grubbing, installation of trees, irrigation and
appurtenances. For the purpose of constructing and installing the PM-10
Reduction Improvements and other related public improvements, the "lead
agency" for compliance with environmental laws, as the term is defined under the
California Environmental Quality Act ("CEQA"), shall be CCC. In this regard,
CCC has performed environmental review of this project and determined the
project to meet the criteria of and is properly classified as a Categorical Exclusion
under CEQA.
b. Upon completion of the PM-10 Reduction Improvements, the Improvements shall
thereupon be under CCC's jurisdiction for the following public purposes and
municipal responsibilities only and CCC shall be responsible for the .following
maintenance obligations only:
i. Maintenance, including tree trimming, and repair;
ii. Living windbreak tree and irigation system replacement;
iii. Sand removal as necessary.
Agreement for Elowsand Mitigation iYleasure Page 3
Thejurisdiction of CC(' tier the maintenance obligations of the PM-10 Reduction
Improvements for the purposes described in Section 3(b) above shall commence
upon the date the CCC City Engineer Files a certificate with the City Clerk of bath
CCC and CPS and records a Notice of Completion attesting to the fact that the
construction and installation work of the PM-IQ Reduction Improvements has
been completed.
c. CCC agrees that the PM-10 Reduction Improvements described in Section (a)
shall be accomplished at no expense to CPS. CCC shall maintain and repair the
PM-10 Reduction Improvements in the same condition as similar improvements
at no cost or expense to CPS.
d. CCC agrees to provide to CPS a completed City of Palm Springs Minor
Architectural Application (MAA).
Section 4. Indemnification and Hold Harmless.
a. CCC agrees to indemnify CPS, its City Council, officers, agents and employees
against, and will defend, hold and save each of them harmless from, any
and all actions, suits, claims, damages to persons or property, losses, costs,
penalties, obligations, errors, omissions or liabilities, (herein"claims or
liabilities") that may be asserted or claimed by any person, firm or entity arising
out of or in connection with the negligent performance of the work, operations or
activities of CCC, its agents, employees, subcontractors, or invitees under this
Agreement, but excluding such claims or liabilities arising from the sole
negligence or willful misconduct of CPS, its officers, agents, employees,
subcontractors, or invitees.
b. CCC agrees to defend any action or actions filed in connection with any of said
claims or liabilities asserted or claimed, in accordance with Section 4(a) above,
and will pay all reasonable costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith. CCC shall have sole authority to
retain legal counsel of its choice and administer and monitor any litigation or
other legal proceeding. CCC shall have sole settlement authority for any claim or
liability.
Agreement for I310 vvsand Mitigation Measvre page 4 0000,36
C. In the event CPS, its officers, agents or employees is made a party to any action or
proceeding Fled or prosecuted against CCC for such damages or other claims
arising out of or in connection with the negligent performance of the work,
operation or activities of CCC hereunder. CCC agrees to pay to CPS, its officers,
agents or employees, any and all reasonable costs and expenses deemed to be
eligible by CCC and CPS incurred by CPS, it officers, agents or employees in
such action or proceeding, including but not limited to, legal costs and attorneys
fees.
d. CCC shall require the Contractor selected to construct and install the PM-10
Reduction Improvements to name CPS and CCC as additional insureds and
provide a copy of its insurance certification to CPS.
Section 5. Notice.
a. Any notice, demand, or request either party desires, or is required to give to the
other party, or to any other person, shall be in writing and shall be served either
personally or sent by first class mail, postage pre-paid, to the following addresses:
City of Cathedral City City of Palm Springs
68-700 Ave. Lalo Guerrero P.O. Box 2743
Cathedral City, CA 92234 Palm Springs, CA 92263
Attn: City Manager Attn: City Manager
b. Either party may change its address by notifying the other party in writing of the
change of address. Notice shall be deemed communicated at the time personally
delivered or after seventy two (72) hours from the time of depositing in the U.S.
mail, if mailed as provided in this section.
Section 6. Integration.
This Agreement supersedes any and all other agreements, either oral or written, between
the parties with respect to the subject matter of this Agreement, and contains all of the covenants
and agreements between the parties with respect to the subject matter of this Agreement, and
each party to this Agreement acknowledges that no representations, inducements, promises, or
agreements have been made by or on behalf of any party except those covenants and agreements
embodied in this Agreement.
Agreement for Blowsand Mitigation Measure Page 5 (� ?
Section 7. Interpretation.
This Agreement shall not be interpreted against either party on the grounds that one of'
he parties was solely responsible for preparing it or caused it to be prepared as both parties were
involved in drafting it.
Section S. Waiver.
No waiver shall be binding, unless executed in writing by the party making the waiver,
and no waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any such waiver constitute a continuing
or subsequent waiver of the same provision. Failure of either party to enforce any provision of
this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining
provisions of this Agreement.
Section 9. Severability.
In any one or more of the sentences, clauses, paragraphs or sections contained herein is
declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall he
deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate
any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 10. Governing Law.
The validity of this Agreement and any of its terms or provisions as well as the rights and
duties of the parties under this Agreement shall be construed pursuant to and in accordance with
California law.
Section 11. Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
Section 12. Venue.
All proceedings involving disputes over the terms, provisions, covenants or conditions contained
in this Agreement and all proceedings involving any enforcement action related to this
Agreement shall be initiated and conducted in the applicable court or forum in Riverside County,
California.
Agreement far Blowsand Mitigation Measure Page 6 Q 00 0 S
Section 13. Successors in Interest.
This Agreement is and will be binding upon and will inure to the benefit of the parties
uzd their legal successors and assigns.
Section 14. Amendments.
This Agreement may be supplemented, amended or modified only by the written
agreement of the parties. No supplement, amendment or modification will be binding unless it is
in writing and signed by both parties.
Section 15. Counterparts.
This Agreement may be executed in counterparts and shall be deemed to be executed on
the last date any such counterpart is executed.
Section 16. Authority to Enter Agreement.
Each party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and to bind each respective party.
Section 17. Captious and Headings.
The captions and headings contained in this Agreement are provided for identification
purposes only and shall not be interpreted to limit or define the content of the provisions
described under the respective caption or heading.
Agreement for Blowsand Mitigation Measure Page 7 0 0 0�LI
IN WITNESS WHEREOF, this Agreement has been duly executed by the respective partic�
hereto by their duly autborized officers as of the date hercinabove first written.
"CCC" "CPS"
CITY OF CATHEDRAL CITY CITY OF PALM SPRINGS
A CALIFORNIA MUNICIPAL CORPORATION A CALIFORNIA CHARTER CITY
7
KATHLEEN,;i/DEROSA, Mayor RONALD ODEN, Mayor
,ATTEST, I ' ATTBST:
PAT HAMMERS, City Clerk w JAMES THOMPSON, City Clerk
APPROVED AS TO CONTENT: APPROVED AS TO CONTENT:
DONALD E. BRADLEY/City Manager DAVID READY, City Manager
APPROVED AS TO kO RM: APPROVE AS TO FORM:
/��&I
CHARLES R. GREEN, City Attorney City Attorney
Agreement for Blowsand Mitigation Measure Page 8
Exhibit "A"
Legal Description and Map of the Property
Agreement for Bdowsand Mitigation Nfeasure Page 9 0 0 Q 0 y I
GENERAL LOCATION AND PROPERTY DESCRIPTION
The proposed project site is a levee located in the City of Cathedral City in central
Riverside County on the west side of Ventura Drive, between Verona Road and Vista
Chino. The map location of the site is in the southwest quadrant of Section 5 and the
southeast quadrant of Section 6, Township 4 South, Range 5 East, on the San Bernardino
Base and Meridian; U. S. Geological Survey (USGS) 7.5' Cathedral City, California
quadrangle (UTM: 11-5: 546,950mE, 3,745,300mN) (Figures 1 & 2). Access to the site
from U. S. Interstate Highway 10 (1-10) is south on Gene Autry Trail, then east on Vista
Chino to the site on the north side. The area surveyed is within the limits of the City of
Palm Springs, but is owned in fee by CVWD. These include the following parcels:
• APN 677-062-012, APN 677-102-010, APN 677-142-010, APN 677-183-018 in Cathedral
City and
• APN 677-003-030, APN 677-003-029 in Palm Springs
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Exhibit "B"
PM-10 Reduction improvements and Other Related Public Improvements
Blowsand Abatement Landscape Improvement Plans
(Plans Ll-I, LI-2 and LI-3)
Agreement for Blowsand Mitigation Measure Page 10 0 Q 0 0 ' `-'
EXHIBIT B (Plan LI-1)
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